City restricts First Amendment sellers at Children's Pool

The city of San Diego is clamping down on the proliferation of First Amendment seller tables at La Jolla’s Children’s Pool, restricting the number of permitees and holding a monthly lottery for applicants effective Dec. 1.

An initial lottery was held Nov. 2 for the first two permits, which were both awarded to pro-beach access groups the San Diego Council of Divers and The Children’s Pool Friends.

Pro-seal groups such as the Animal Protection and Rescue League and La Jolla Friends of the Seals, did not apply for, and were not granted, permits to have tables at the popular seal-viewing and water-recreation site.

In a letter sent out Oct. 15 by the city to potential First Amendment Seller applicants at Children’s Pool, it was stated that two sites at Children’s Pool have been designated as permit sites, subject to change due to the impending Children’s Pool Lifeguard Station construction project.

The city’s letter stated park permits for Children’s Pool are open to all First Amendment sellers, and that each of the two sites is subject to a separate lottery drawing, with each applicant drawing a number that will be used to determine the order in which they will be allowed to select days for each location.

A fee of $5 per day, with a $50 monthly maximum, will be assessed for each First Amendment seller at each location paid before permit issuance.

Ellen Shively, president of La Jolla Friends of the Seals, said her nonprofit group is largely unaffected by the new regulation. “We don’t have a table down there (pool),” she said. “The only money that passes hands is donations for our educational program, though we do have signs.”

Shively however disagrees philosophically with the new city regulation. “I do think it is an erosion of our free speech rights, and just an overreaction from the swimming and diving community to our effort to protect the seals,” she said.

On the other hand, John Leek, secretary for the San Diego Council of Divers, which has been lobbying the city to restrict First Amendment sellers at the pool, said the new regulation is a vindication of his group’s position.

“For us it’s a civil rights issue,” Leek said. “We were being harassed from the bully pulpit of anti-beach activists for years, which was all illegal. The city came up with the plan.”

Bryan Pease, spokesman for the Animal Protection and Rescue League, which has regularly hosted a table at Children’s Pool, said he was unaware of the new city regulation restricting the number of First Amendment sellers there.

Pease questioned the legality of the restriction, citing a recent federal court ruling issuing a preliminary injunction against Venice Beach regulations implementing a lottery system for First Amendment sellers.

“The Court found ‘plaintiffs are likely to establish that the permitting system is not narrowly tailored to promote a significant government interest,’ ” noted Pease in an e-mail.